EU’s ‘right to be forgotten’ case against Google drums up compliance concerns

Since Google’s ascendance to the position of most powerful Internet content curator, the company has been mired in petitions from entities ranging from individual users to corporations to courts to have content about them removed from the search engine’s listings. This issue has raised a debate around whether or not Google — and search engines in general — should be responsible for the content available on the Internet, or if they should bear the responsibility for its publication. In the past, Google has been successful avoiding the responsibility of acting as the publisher, but things have changed in Europe recently.

In May, the Court of Justice of the European Union (CJEU) issued a decision in the case of Google Inc. and Google Spain against the Agencia Española de Protección de Datos, the Spanish data protection authority. The decision requires search engines to provide citizens the opportunity to petition to have information published about them on the Internet removed. This decision,dubbed “the right to be forgotten,” is one that Google has publicly lamented as potentially creating opportunities for content censorship in cases where the public has the right to know information about certain individuals or groups. But Google has since devised a method for dealing with the influx of requests for takedowns. Chris DiMarco for InsideCounsel writes about the details of Google’s approach which includes forms that require users to enter the URLs of the material they would like removed as well as submitting reasons for the requested removal of content.

Global law firm Baker & McKenzie provides some analysis of this decision, and how Google has chosen to respond: “Consistent with the language of the judgment, Google is asking that the complainant explain why the information is ‘irrelevant, outdated or otherwise inappropriate’ …Interestingly, Google has elected not to include the fourth criterion mooted by the CJEU, namely that the information is ‘excessive,’ immediately above the input box, but it does mention it at the start of the form, so we do not think much can be read into this. It remains to be seen what approach Google will take to assessing such claims.”

Google’s method for wrestling with all the requests is an attempt to balance privacy rights of individuals with the public’s right to information. The company has said that in the evaluation process for takedown requests it will judge whether or not there is public interest in the information sought after removal. Data concerning financial scams, malpractice or criminal activity would all fall under that category. Baker & McKenzie’s analysis of the decision discusses some of the implications for stakeholders: “Google’s response to the Costeja decision is important for all stakeholders as it is likely to set the industry bar for responding to take down notices of this sort. Other search engines will watch the response with interest, as will the media industry and DPAs (and of course those who represent public figures in particular). Any publisher of material or links on the web would be wise to keep an active eye on this area of developing jurisprudence.”

Since the decision is not appealable, it now exists as law in the European Union, and will likely set forth some new challenges for Internet publishers and curators concerning compliance.